Prenupt and Homestead

Lots of couples today are executing a prenuptial agreements prior to marriage.  One issue is can you contract away your homestead rights in a prenuptial agreement?  The answer seems to be no.    In Estate of Jones: Dixon v. Jones, decided  by the Mississippi Court of Appeals on April 29, 2014, the Court found that a quit claim deed was void by failure of the wife to join in the conveyance despite the fact there was a prenuptial agreement.   The Court cited to Ward v. Ward, 517 So.2d 571, 573 (Miss. 1987):

"Our legislature has chosen to place a restriction on the transfer or encumbrance of homesteads[,] and therefore, homesteads in Mississippi may not be alienated except in compliance with those restrictions. There can be no operative conveyance or effectual release of the exemption unless the method pointed out by the statute is pursued with strictness[,] and no requirement of the statute may be waived by the husband and wife or by either of them. Chancery will not interfere to give relief where by express law there is a limitation on the power of alienation of the homestead[,] and the final relief sought is merely to relieve that limitation." (emphasis added)

The language in here stands for the proposition that a statutory right cannot be contractually waived.  There is some other helpful language in the opinion that deals with when a will acts as a revocation of a prenuptial agreement which was another issue in the case.  

Weight Given to Albright Factors

In custody cases in Mississippi, the trial court is guided by the Albright factors for custody.  The factors are not the equivalent of a mathematical formula.  (i.e. who gets the most factors is not supposed to obtain custody).  However, this is how it is often applied.   In a lot of cases, each parent will be favored on some factors.  In these cases, I think the next area the caseload will be going is how much weight the court assigns to each factor.  This is one thing I have seen very few chancellors do and may be worth a post-trial motion.  In cases, there are often situations where one Albright factor may be given so much weight that it can override the others.  (i.e. mental health, parenting skills).   This is particularly important where the case is close. 

Same-Sex Divorce Brief

Several people have asked me how the same-sex divorce case is going.  It is currently up on appeal and the Court has issued a briefing schedule.  I will probably file the brief later this week.  I have the brief done except for the Table of Authorities which is taking a great deal of time.  There is almost literally a new opinion from other jurisdictions dealing with this issue about once a month.  Once I finalize the brief, I will upload a copy to this blog. 

Advancing New Arguments

Lots of times, we all get stuck in the trap of not expanding on the law.  In many instances, existing caselaw can be taken and you can look at the next logical step from a case to make new arguments.  A few years ago, myself and co-counsel did this is in Cuccia v. Cuccia located here dealing with having the court to set a line of demarcation in valuation determinations.  The lesson is that the law as it exists can be expounded upon to create equitable results in the right circumstances. 

Shifting Standard of Care

I have been working on several medical malpractice cases as of late.  One issue that has been coming up is the shifting standard of care.  As time goes by, what was the standard of care a few years ago, may not be the standard of care now.  This can be important where malpractice is discovered years later and testimony will be needed on what the standard of care was at the time of the procedure. 

Book Review

I finished reading The Power of a System:  How to Build the Injury Law Practice of Your Dreams by John H. Fisher this morning.  The book was excellent and gave me several new ideas on things.  The list of services at the back is worth the price of the book alone.  It gives some ways to cut some overhead on receptionists and various other things that can be helpful in getting a practice off the ground.  Much of the advise is relevant to any practice.  Other portions, especially on dealing with clients calling is more applicable to injury cases as opposed to family law matters where issues tend to me a little more time sensitive.  Overall, good book and very reasonably priced. 

Settling Case in Part

For some reason, many people are opposed to settling a divorce case in parts.  I have never been of that view.  On issues that can be agree to, get that part reduced to writing and approved by the court.  This is often helpful on cases where custody can be settled but not property or vice versa.  The may be done as part of an agreement to consent on irreconcilable differences.